Litigants who oppose the removal, or even the covering with tarps, of Charlottesville, VA statues commemorating Confederate generals presented an expert in mourning to strengthen their claim that the city council was required to unveil the statues. The city council covered the statues as the city (or at least some of its residents) mourned the deaths that resulted from a clash between White Nationalists and protestors against racism.

Civil War Statues in Charlottesville

A statue of Robert E. Lee astride a horse stands at the highest point of a Charlottesville park. The parkland was donated to the city in 1917. At that time, the city named the park Robert E. Lee Park. The same donor gave additional parkland to the city in 1919. The second park features a statue of Stonewall Jackson, and the park was named Jackson Park.

In February 2017, the city council renamed the parks Emancipation Park and Justice Park in recognition that honoring Civil War generals who fought to preserve slavery is offensive to people of all races who cherish the American values of freedom and equality. The council debated removing the statues, but its members were concerned that the removal was prohibited by state law and would violate the terms under which the land was donated to the city.

City leaders voted 3-2 to remove the statues, but they were left in place pending the resolution of legal issues. In August 2017, however, the council voted to cover the statues with tarps in response to the murder of Heather Heyer by a white supremacist at a Unite the Right Rally. The rally was motivated in part by the city’s decision to remove the statues. The city announced that it was mourning Heyer’s death, as well as the deaths of a Virginia State Police lieutenant and a trooper-pilot, at the divisive rally.

Mourning Expert

A number of individuals, including descendants of the statues’ donor, as well as the Monument Fund and the Sons of Confederate Veterans sued the city to prevent it from implementing its vote to remove the statues. The lawsuit includes a claim for damages, although it is difficult to understand why removing the statues would be any more harmful to individuals in the community than leaving them in place.

After the city covered the statues, the plaintiffs in that lawsuit asked the judge to order the tarps removed, contending that the mourning period was a “pretext” to cover the statues indefinitely in lieu of taking the potentially unlawful action of removing them. The plaintiffs pointed to a city council resolution to find a more elegant way to screen the statues from public view. The plaintiffs’ attorney persistently but inaccurately characterized the plastic tarps that cover the statues as “trash bags.”

In support of their claim, the plaintiffs called a funeral director as an expert witness on the subject of mourning. The court allowed the witness to testify over objection that he had no expertise in a community’s collective mourning in the aftermath of a traumatic event.

The plaintiffs wanted to establish that mourning periods never last for five months, and that the continued covering of the statues was therefore not consistent with a mourning period. The plaintiffs asked the expert witness, John Mathis, about religious mourning practices. The judge ruled that the proposed testimony was irrelevant, presumably because the city council is prohibited by the Constitution from engaging in a religious practice.

Mathis testified about “public mourning practices for deceased police officers or firefighters: mourning badges, bunting, flags at half mast, wreaths and processions.” When the city’s attorney asked Mathis about the significance of a one year death anniversary, Mathis testified that it is significant to family members but not to people who attend a funeral. That might come as a surprise to American citizens who mourn the deaths of President Kennedy and Martin Luther King, Jr. on each anniversary of their deaths.

Court’s Decision

After taking some time to consider the evidence, the judge ruled that the tarps must be removed. The court based its ruling on its perception that the city intended to cover the statutes permanently, which interferes with viewing the statues in violation of state law.

According to the judge, “it is not a matter of the ‘mourning’ having gone on too long.” Rather, the city’s failure to set a firm date for removing the tarps constituted a failure to prove that the coverings would not be “anything other than permanent.”

At some point, the court will need to decide the merits of the lawsuit, including the city’s claim that the state law does not apply to statues erected before the law’s effective date. The court’s ruling on the motion to remove the tarp may signal its belief that the law applies and that state law will force Charlottesville to continue to commemorate Civil War generals who fought against the emancipation of slaves.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.